TMI Blog1992 (11) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... year 1979-80. The assessee is a Hindu undivided family consisting of a son and his mother only. The assessee contended before the Income-tax Officer that there was an oral partition or family arrangement which took effect from April 4, 1979, and, in confirmation of the same, the parties executed document on May 18, 1979, and, under the partition, immovable properties described in schedule 'B' were allotted to the son and movable properties described in schedule 'C' were allotted to the mother and thereafter they have been enjoying the properties separately. On these averments, it was contended that the Hindu undivided family cannot be assessed and the individuals may be assessed. The Income-tax Officer overruled this contention on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artition has been recorded by the Assessing Officer and the partition took place during the previous year, the total income of the joint family in respect of the period up to the date of partition shall be assessed as if no partition had taken place. Some of the sub-sections deal with partial partition and are not relevant for the purpose of this case since we are dealing with the case of a complete partition. Learned counsel for the Revenue contended that if there is only one male member in the Hindu undivided family, the female member of the Hindu undivided family cannot claim partition and relied on the decisions of the Rajasthan High Court in Dalichand Tejraj v. CIT [1974] 97 ITR 383, of the Madras High Court in W.S. Natarajan v. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndu Women's Rights to Property Act, 1937, and the provisions of the Hindu Succession Act, 1956. Under the Mitakshara law, on the death of a coparcener his interest in the coparcenary property does not pass by succession to his heirs ; it passes by survivorship to other coparceners. This rule has been modified by the proviso to section 6 of the Hindu Succession Act, 1956. According to section 6, when a male Hindu dies after the commencement of this Act, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act. This, of course, is a reiteration of the principle of Mitakshara law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified in class I of the Schedule. The intestate's widow shall take one share, the surviving sons and daughters and the mother of the intestate shall each take one share. In the present case, admittedly, the father died after the coming into force of the Hindu Succession Act, 1956, leaving only the son and the son's mother. Therefore, the undivided share of the father did not pass by survivorship but passed by succession to the two heirs, namely, the son and the widow. Under the pristine Mitakshara law, though every coparcener is entitled to a share on partition, every coparcener may not have an unqualified right to enforce or sue for partition. The wife cannot herself demand partition but, if a partition takes place between the hus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coparcener which devolves by inheritance on his heirs is concerned, the heirs take the same as tenants-in-common. In other words, on the death of coparcener, his share would devolve on his heirs and the balance share would continue to be the asset of the coparcenary. The rule of pristine Mitakshara law that when, in a family consisting of father, mother and son, partition takes place between the male members, the mother may be entitled to a share equal to that of the son in lieu of her claim for maintenance, but she herself cannot demand partition, cannot apply to a state of affairs reached on the death of her husband. The widow as an heir of her husband would certainly be entitled to claim the share inherited by her and, for that purpose, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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